Posted By Davis & Hoss, pc || 20-Sep-2012

In State v.
Ackerman, the Tennessee Court of Criminal Appeals addressed Tennessee Rule ofEvidence 803(26), a hearsay exception adopted in 2009 that allows admission
of some prior inconsistent statements as substantive evidence.

The Rule states that the following are
not excluded by the hearsay rule:

A statement otherwise admissible under
Rule 613(b) if all of the following conditions are satisfied:

(A) The declarant must testify at
the trial or hearing and be subject to cross-examination concerning the
statement.

(B) The statement must be an
audio or video recorded statement, a written statement signed by the witness, or
a statement given under oath.

(C) The judge must conduct a
hearing outside the presence of the jury to determine by a preponderance of the
evidence that the prior statement was made under circumstances indicating
trustworthiness.

The CCA emphasized that

[t]o be admissible as substantive
evidence via Rule 803(26), a statement must first be admissible as a prior
inconsistent statement via Rule 613(b). That rule provides that ‘[e]xtrinsic
evidence of a prior inconsistent statement by a witness is not admissible
unless and until the witness is afforded an opportunity to explain or deny the
same and the opposite party is afforded an opportunity to interrogate the
witness thereon, or the interests of justice otherwise require.

The
admissibility of a prior inconsistent statement as substantive evidence will
often turn, therefore, on whether the witness testifies in an inconsistent
manner. As the CCA explained, the
witness must deny the statement, equivocate about having made the statement, or
testify inconsistently and then testify that he or she does not recall making the
prior inconsistent statement. Finally,
the court noted that nothing in Rule 803(26) “permits the admission of a
witness’s prior statement in its entirety.”